On October 23rd, 2023, a bill (SB 542) was introduced in the Wisconsin Senate that is quite concerning. The bill was introduced by Senators Rachael Cabral-Guevara, Duey Stroebel, and Cory Tomczyk. The bill has been introduced and referred to the Senate Committee on Education. The purpose of the bill would be to reduce the standard for when physical restraint and seclusion can be used in Wisconsin schools. I’ll begin by saying that Wisconsin already has a weaker standard of use for physical restraint and seclusion than other states. Currently, Wisconsin Act 118 (2019) says that physical restraint or seclusion should only be used when the pupil’s behavior presents a clear, present, and imminent risk to the physical safety of the pupil or others (section 118.305).
In 2012, the United States Department of Education issued guidance titled Restraint and Seclusion: Resource Document. That guidance suggested physical restraint and seclusion should never be used except in situations where a child’s behavior poses an imminent danger of serious physical harm to self or others, and the use of physical restraint and seclusion should be avoided to the greatest extent possible without endangering the safety of students and staff. Do you see the difference there? It is just a word but an important one—serious.
The phrase “serious physical harm” has a legal definition, which is the same as that of “serious bodily injury” as follows: 18 U.S.C. 1365(h)(3) states that the term “serious bodily injury” means bodily injury which involves— (A) a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
United States Department of Education suggested in its 2012 guidance that physical restraint and seclusion should only be used in a potentially life-threatening situation. Why would the United States Department of Education recommend such a high bar for use? Most likely because they recognized the risks involved with using physical restraint and seclusion. Currently, Wisconsin Act 118 has a lower standard of use for restraint and seclusion use. And now, some lawmakers are proposing an even lower standard of use; they want a standard that says a student can be physically restrained or secluded if they upset someone (serious emotional distress) or cause a disruption; this is far too low a bar to use. We should not allow potentially deadly force to be used as a response to classroom disruptions.
What are Restraint and Seclusion?
According to Wisconsin law, physical restraint is a restriction that immobilizes or reduces the ability of a pupil to freely move his or her torso, arms, legs, or head. More simply, it is holding a child in a way that prevents them from moving freely. There are many forms and techniques used, but physical restraint is something you might imagine happening when police apprehend a suspect, not something you think about being done to a young child with a disability.
Wisconsin law defines seclusion as the involuntary confinement of a pupil, apart from other pupils, in a room or area from which the pupil is physically prevented from leaving. Seclusion is forcing a child into a small padded room, a closet, or some other area and not letting them out. In short, it is a form of solitary confinement. There is a common misconception that seclusion is somehow better than restraint or causes less harm. However, it is worth noting that seclusion is an ” involuntary confinement” of a child. That means the child is not going into the space willingly but rather being forced into the space. After all, if the child went willingly, there would be little justification to seclude them, as they would not be presenting an imminent risk to the physical safety if they were able to go into the room on their own accord. So, how do you get a child into a small padded room against their will? You restrain them and force them into the space against their will. The use of physical restraint almost always precedes the use of seclusion, although staff often don’t report the restraint or call it a transport.
About the proposed legislation
Let’s begin by looking at an excerpt from the Analysis by the Legislative Reference Bureau:
Under current law, individuals who work in a public school, including a charter school, or a private school participating in the Special Needs Scholarship Program may use seclusion or physical restraint on a pupil at school only if certain conditions are met. One of the conditions is that the pupil’s behavior must present a clear, present, and imminent risk to the physical safety of the pupil or others. Other conditions are that, for purposes of seclusion, the seclusion may only last for as long as is necessary to resolve the risk of physical safety to the pupil or others and, for purposes of physical restraint, the degree of force and the duration of the restraint may only be what is necessary to resolve the risk of physical safety to the pupil or others. This bill changes these conditions to include pupil behavior that presents a clear, present, and imminent risk of serious emotional distress for the pupil or others or creates a considerable disruption to a classroom or other learning environment. In other words, under the bill, an individual who works in a public school or an SNSP school may use seclusion or physical restraint on a pupil if the pupil’s behavior presents a clear, present, and imminent risk to the physical safety of the pupil or others, presents a clear, present, and imminent risk of serious emotional distress for the pupil or others, or creates a considerable disruption to a classroom or other learning environment, and may use the seclusion or physical restraint for only as long as is necessary to resolve the risk of physical safety or serious emotional distress or the considerable disruption to the classroom or learning environment.
So, the short version is that if a kid disrupts class, you are free to use potentially deadly force or force a child into a seclusion cell.
What do you mean by potentially deadly force, you ask? Let’s take a couple of steps back for a moment. Physical restraint and seclusion are crisis management techniques intended to be used as a measure of last resort. Why a last resort? Let’s look at what we know about the use of physical restraint and seclusion.
Who is more likely to be physically restrained and secluded in schools?
Children with disabilities, Black and brown children, and children with a trauma history are more likely to be physically restrained and secluded in schools. According to 2017/18 data from the Department of Education’s Office of Civil Rights, 80% of the nationwide physical restraints reported by schools are children with disabilities. The same data set shows that 77% of the seclusion were children with disabilities. In many state-level data sets, we have seen numbers as high as 98% of the physical restraints and seclusions being done to children with disabilities. Autistic children and children labeled with emotional disabilities are more often physically restrained and secluded in schools. Black students are also disproportionately restrained and secluded in schools. According to the OCR data, while making up about 15% of the total population of students nationwide, Black students represent about 26% of the total physical restraints. In our work with Wisconsin educators, we’ve learned about the disproportionate use of restraint and seclusion practices, with minority groups such as Blacks, Hispanics, and those identifying with two or more races being impacted disproportionately compared to their representation in the student population.
Here is another interesting data point: the students who are most often physically restrained and secluded in schools are our youngest students, just 5, 6, and 7 years old. Why are children with disabilities and children with a trauma history more often restrained and secluded in schools? Because schools are often not appropriately meeting the needs of these children. When a child is physically restrained or secluded, it is not a failure of the child but a failure of the system. The use of physical restraint in schools is so disproportionate that it is, in fact, discriminatory. The Office of Civil Rights in 2016 issued guidance in the form of a Dear Colleague Letter to warn states that the use of restraint and seclusion can violate the civil rights of children. Yet, some Wisconsin lawmakers suggest we need to increase the use of physical restraint and seclusion, which will undoubtedly increase civil rights violations across the state.
What is the impact of the use of physical restraint and seclusion in schools?
Children, teachers, and staff are more likely to be injured and more likely to suffer emotional trauma when physical restraint and seclusion are utilized; this is why we should do everything we can to make the use of physical restraint exceedingly rare. It is our belief that seclusion should never be an option. Forcing a child into a room or area and preventing them from leaving is not an appropriate intervention. When you go hands-on with a child (more often than not, a young, Black, disabled child), you will likely escalate the behavior and create a more dangerous situation. Your hands-on restraint or dragging a child to a seclusion room will likely trigger the child’s innate fight or flight response. This is not thoughtful or intentional; it is human biology, a survival drive. When a child goes into a fight or flight state, they swing their arms, kick, spit, and do whatever is needed to survive a threat. When the dysregulated child hits an adult, the adult may enter a fight or flight response mode. When an individual is in a fight or flight response, the rational thinking part of our brain goes offline.
When two or three dysregulated adults are restraining a 47-pound disabled child, there is a significant risk of serious harm and even death.
Children have died being physically restrained in schools, not one or two children, but hundreds of children. More often, the children killed by physical restraint are children with disabilities. More often, the children killed by physical restraint are Black children. Children in Wisconsin have died being physically restrained in schools. In 2009, the Government Accountability Office issued a report titled “Seclusion and Restraints: Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers.” Let the title of that report sink in for a moment. In the report, the GAO found hundreds of cases of alleged abuse and death due to the use of physical restraint and seclusion in schools. Knowing that children have died being physically restrained in school, we can conclude that the use of physical restraint is the use of potentially deadly force.
When is it appropriate to use potentially deadly force in a classroom because a disabled child caused a disruption?
Last year, the Alliance Against Seclusion and Restraint began a partnership with the Crisis Prevention Institute (CPI). Crisis Prevention Institute (CPI), a Wisconsin-based company, is the world’s largest de-escalation and crisis prevention training provider. The Alliance Against Seclusion and Restraint and the Crisis Prevention Institute entered into a partnership based on the shared goals of eliminating seclusion and reducing the use of physical restraints in classrooms nationwide. Both CPI and AASR agree that the use of restraint should be rare, a last resort, and we also agree that seclusion is never appropriate in schools. Through our partnership, we are working together to develop upstream trauma-informed and neuroscience-aligned training to help prevent the need for crisis management. Anything we can do to avoid a crisis, we should do. We should do anything we can to prevent the need to use physical restraint.
Lowering the standard for the use of restraint will have the opposite effect; it will increase the use of restraint and seclusion and put students, teachers, and staff in unnecessary danger.
The final consideration around the impact of physical restraint and seclusion is trauma. Using physical restraint and seclusion leads to trauma for children, teachers, and staff. The brain areas implicated in the traumatic stress response include the amygdala, hippocampus, and prefrontal cortex. Traumatic stress can be associated with lasting changes in these brain areas. The use of physical restraint and seclusion can lead to significant changes in the brain. Children who have been traumatized by restraint and seclusion may not feel safe in the classroom and are more likely to enter a hypervigilant state and more likely to have an increase in stress behavior. Meaning the more you do it, the bigger the problems grow. This is not a solution, and this is why the use of restraint should be limited to potentially life-threatening situations, and seclusion should be prohibited in Wisconsin schools.
Why lowering the standard is a really bad idea?
There is likely good intent behind the proposed idea in SB 542, but weakening the standards in Act 118 is not the solution. I imagine this bill is being introduced related to concerns with children’s behavior in the classroom. Yes, we should be concerned when children are having big behaviors in our classrooms. Behavior is the way that many children communicate that they are having a difficult time and that their individual needs are not being appropriately met. Concern should lead us to curiosity, which should lead us toward work to determine why children are having difficulty meeting classroom expectations. There are far better ways to address behavioral concerns than using potentially dangerous crisis management approaches.
We often hear the argument, “What about the other kids in the room?” and there is a fantastic article about Alex Shevrin Venet that addresses that question in great depth. The article raises several important points, including the idea that all the kids are watching and listening to how we, the adults, respond. Think about the message that is being sent when we restrain the young, Black, disabled child because they are having a difficult time. These have been challenging times, and on the heels of the global pandemic, our children are struggling, as are our educators, but our children need our help, not for us to assert our power over them.
If big behavior is the concern, we need to come together to develop solutions.
It is also important to put this proposed legislation into a greater context. The proposed bill runs counter to what we are seeing happen across the nation. In fact, nationally, more states are introducing and passing bills that aim to reduce the use of physical restraint and eliminate the use of seclusion. Looking at the Federal level, the Wisconsin bill is not in alignment with the Keeping All Students Safe Act, a bill that would eliminate seclusion and reduce the use of restraint. Nor is the bill consistent with the work and guidance of the Office of Civil Rights and the Department of Justice.
The Department of Justice has been actively investigating the use of seclusion in school districts across the country. They have entered into settlement agreements with several large districts after finding the districts to be discriminating against children with disabilities. In the settlement agreements, the districts are prohibited from using seclusion. This proposed legislation, if passed, would give Wisconsin one of the weakest laws in the nation related to the use of restraint and seclusion.
There are far better ways to support children and maintain safety in the classroom.
The bottom line is that this bill is a bad idea for many reasons, but first and foremost, we should not be encouraging the use of physical restraint and seclusion. Physical restraint and seclusion are intended as measures of last resort to be used in a potentially life-threatening crisis. The use of physical restraint is the use of potentially deadly force. We don’t use potentially deadly force on a 6-year-old, 47-pound, Black student with disabilities because they are having a difficult time meeting classroom expectations. Physical restraint should only be considered in situations in which there is an imminent risk of serious physical harm to the student or others, and Wisconsin should follow the lead of other states and ban the use of seclusion in schools. Using restraint and seclusion, as proposed by this bill, would put our most vulnerable students, as well as teachers and staff, at increased risk of trauma and injury. We can and must do better.
Let’s hear what others in Wisconsin have to say about this proposed bill
We reached out to several organizations and asked them for their thoughts on the proposed legislation.
“Disability Rights Wisconsin is vehemently opposed to SB542 and to any proposal that would produce an increase in restraint and seclusion in our schools. Families from across the state came together several years ago to tell their stories of how their children were traumatically and repeatedly restrained and secluded in school. The current strong state statute came about because of their determination and a powerful, unanimous coalition effort.
Students with disabilities need support rather than force and isolation, and DRW is committed to keeping students safe at school. It’s not easy for Wisconsin families to have to keep coming to Capitol to re-tell the stories of how permanently harmful restraint and seclusion can be, but if that’s what it takes, we will help make sure their voices are heard again.”
Disability Rights Wisconsin
“This is a horrible bill that has no support among anyone who knows anything about seclusion and restraint. No one in the disability community supports this. No education groups support it. The Department of Public Instruction does not support it. If anything, we need to improve our efforts to reduce the use of seclusion and restraint, which leaves lasting emotional scars on children who experience this torture, rather than finding ways to expand the use of these horrific disciplinary measures.“
Wisconsin Civil Rights Attorney
Systems Change Consulting
“Wisconsin disability advocates and families of students with disabilities stand together in opposition to this bill, which would open the door to more unnecessary and harmful seclusions and restraints of children, most of whom have disabilities. 75% of the reported seclusions and restraints in Wisconsin are used on students with disabilities, and most of these children are in elementary school.
Seclusion and restraint are traumatic for the student, school staff, and other students who witness their use on classmates. Witnessing seclusion and restraint sends powerful negative messages to other students on what is ok to do to students with disabilities and that the same thing could happen to them. Most importantly, seclusions and restraints are not effective. Rather than focusing on responses to student behavior, teachers need support to use best practices on de-escalation and understanding what communication or sensory needs a student is expressing through behavior. Students need the appropriate supports and services to decrease any potential behavior issues, including in-depth functional behavior assessment and positive behavioral intervention plans.”
Wisconsin Board for People with Developmental Disabilities
“Increased incidents of disruption in schools are real, but the solution is not to allow teachers to increase their use of restraint and seclusion. The answer is to give teachers the skills to prevent or quickly de-escalate disruptive behavior – in order to create a culture where all students can thrive.”
Crisis Prevention Institute
“The amendment to the bill is suggesting the addition of the following phrases to support the reasons for when/why to restrain or seclude kids, “serious emotional distress” or a “considerable disruption to a classroom or other learning environment’. As both a mom and educator, I have thought the original bill was already too subjective when deciding if the child might be in danger of harm, resulting in the decision to restrain. The two additional circumstances feel even more subjective. Becoming “emotionally distressed” or deciding what is a “disruption” can change day to day based on the adult’s capacity to tolerate a child’s behavior. Being a child in this unpredictable environment, waiting for the teacher to determine you’re “too disruptive” or “too emotionally distressing” is creating a plethora of uncertainty for everyone. There are better options than seclusion and restraint in all environments. If we want to make a change to Bill 118, let’s end seclusion and restraint instead of encouraging it.”
Mother of a child who was restrained and secluded
Wisconsin Public School Teacher
“The proposed weakening of criteria for the use of physical restraint and seclusion in Wisconsin schools raises serious concerns due to its subjectivity, which will lead to inconsistent practices, increased use, and equity issues. The unclear definitions of ‘serious emotional distress’ and ‘considerable disruption’ invite bias and misuse of authority, compromising student and staff well-being.
In my experience working closely with parents, families, and educators, I’ve witnessed the profound and lasting impacts these practices have on everyone involved. The emotional and sometimes physical trauma endured by students subjected to these interventions can hinder their sense of safety in the school setting as well as their social and academic outcomes. For parents, the anxiety and helplessness associated with their child’s distress is overwhelming, often straining the family dynamic as well as relationships with school staff. Educators, too, carry the weight of resorting to measures they know are traumatic, impacting their morale and professional job satisfaction.
Emphasizing de-escalation, prevention, and mental health support is crucial to minimize reliance on these extreme measures. We must commit to safe, nurturing educational environments over approaches that compromise trust and safety.“
Speech Pathologist & Educational Consultant
We also reached out to the Wisconsin Department of Public Instruction (DPI), who responded and stated that as the legislation had just recently been introduced, they are doing their due diligence, but they would try to get back to us when they have more information. We will update this article if we receive a response from DPI.
Update (November 15th): DPI responded.
As State Superintendent Dr. Jill Underly stated in July, “We must continue our commitment to reducing the frequency of these incidents, and we must especially focus on using this information to better inform and improve our systems and best practices when working with our students with disabilities.” This was at the time of the release of 2021-22 data concerning seclusion and restraint. She went on to add, “Reading this report and seeing these numbers can be difficult, but that is nothing in comparison with the emotional difficulty these numbers represent in the lived experiences of students and staff.” The Wisconsin Department of Public Instruction does not support this bill, and should it come to a hearing, the DPI will register in opposition.
Dr. Jill Underly
Wisconsin Department of Public Instruction
What can you do?
We must do all we can to stop this misguided and harmful legislation. If passed, it would increase the use of restraint and seclusion in Wisconsin schools. If passed, it would put students, teachers, and staff at an increased risk of trauma, injury, and even death. If passed, it would lead to an increase in discriminatory and inequitable practices in Wisconsin schools. If passed, it would be an invitation for an investigation by the Department of Justice or the Office of Civil Rights.
We need you to take action. Contact your state-level elected officials and share your concerns. We plan to share more ideas for what you can do in the coming days, but in the short term, you should reach out to members of the Wisconsin Senate Committee on Education and ask that they vote against this proposed bill. Members of the committee include: